Protection from dismissal for asserting a statutory right only applies where the employee alleged an actual breach of statute, not a threatened one.

Section 104(1) of the Employment Rights Act 1996 specifies that an employee can claim automatic unfair dismissal (i.e. no qualifying service needed) if the reason or principal reason for dismissal is that the employee:

brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or

alleged that the employer had infringed a right of his which is a relevant statutory right.

This protection is only provided in relation to the specific statutory rights listed in s. 104(4) which include those rights provided by the Employment Rights Act 1996 where the remedy for breach is provided by the employment tribunal (thus including the right not to be unfairly dismissed, the right to a statutory redundancy payment, etc), in respect of unlawful deductions and the rights conferred by the Working Time Regulations and TUPE.

The protection provided by s. 104 engages whether or not the employee actually has the right in question or whether that right has been infringed – so a claim can be brought where a complaint is made about a relevant statutory right, even if the complaint itself is unfounded.

Background

Mr Spaceman worked as a porter in a hospital. He was accused of sexual harassment and suspended. There was an investigation and he was invited to a disciplinary hearing. Before the disciplinary, Mr Spaceman was told by a colleague that he would be ‘sacked anyway’. He raised this at the disciplinary hearing. After further investigation he was summarily dismissed.

Mr Spaceman brought a claim under s. 104 claiming that he was dismissed because of the allegation he made at the disciplinary, i.e. that his employer had made up its mind to dismiss him anyway which infringed his right not to be unfairly dismissed. A tribunal struck out his claim as being hopeless and he appealed.

EAT decision

Dismissing his appeal, the EAT agreed with the tribunal that s. 104 requires an allegation that a statutory right has been infringed rather than that the employer has threatened to infringe such a right. The use of the past tense in s. 1104 was significant said the EAT. The right in question was the right not to be unfairly dismissed and the assertion of this right could only be made after the dismissal. As such, given that Mr Spaceman asserted a future breach off the statutory right, it could not be relied upon as the reason for dismissal.

Do not assume that just because an employee has less than two years’ service that he or she will have no potential claim (leaving aside those claims such as discrimination or whistleblowing which don’t need any qualifying service). If an employee can show (which Mr Spaceman couldn’t here) that their complaint, even if incorrect, was the principal reason for dismissal and relates to a relevant statutory right, then a s. 104 claim can be brought – even if the allegation is actually incorrect.